INTERPRETATION OF THE

WA HEALTH SYSTEM - UNITED WORKERS UNION (WA) - ENROLLED NURSES, ASSISTANTS IN NURSING, ABORIGINAL HEALTH WORKERS, ETHNIC HEALTH WORKERS AND ABORIGINAL HEALTH PRACTITIONERS INDUSTRIAL AGREEMENT 2022

AND

WA HEALTH SYSTEM - UNITED WORKERS UNION (WA) - HOSPITAL SUPPORT WORKERS INDUSTRIAL AGREEMENT 2022

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00666

DELIVERED : WEDNESday, 9 AUGUST 2023

FILE NO. : APPL 5 OF 2023

Applicant

AND

Child and Adolescent Health Service AND OTHERS

Respondents

CatchWords : Industrial Law (WA) ‑ Interpretation of Agreement ‑ s 46 ‑ WA Health System - United Workers Union (WA) - Enrolled Nurses, Assistants in Nursing, Aboriginal Health Workers, Ethnic Health Workers and Aboriginal Health Practitioners Industrial Agreement 2022 ‑ WA Health System - United Workers Union (WA) - Hospital Support Workers Industrial Agreement 2022 ‑ Clauses providing long service leave for casual employees ‑ Dispute about the way service should be recognised for the purpose of long service leave under the casual LSL clauses ‑ What is ‘continuous service’? ‑ Whether clauses are ambiguous ‑ Ordinary meaning of continuous service ‑ Whether service includes pre‑registration service ‑ Reference to history of clause in construction ‑ Whether ordinary meaning of continuous service has retrospective effect on accrued rights or entitlements ‑ Declaration issued

Legislation : Fair Work Act 2009 (Cth)

Industrial Relations Act 1979 (WA)

Industrial Relations Act 1999 (Qld)

Long Service Leave Act 1958 (WA)

Minimum Conditions of Employment Act 1993 (WA)

Workplace Relations Act 1996 (Cth) 

Result : Declaration issued

Representation:

Applicant : United Workers Union

Respondents : State Solicitor’s Office

Case(s) referred to in reasons:

Browne v Director General, Department of Water and Environmental Regulation [2020] WASCA 16

Conroy’s Smallgoods v Australasian Meat Industry Employees Union [2023] FCAFC 59

Director General of the Ministry for Culture and Arts v The Civil Service Association of Western Australia Incorporated & Ors [2000] WASCA 13; (2000) 80 WAIG 453

Director General, Department of Education v United Voice WA [2013] WASCA 287; (2014) 94 WAIG 1

FreshFood Management Services Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) [2023] FWCFB 97

Holland v UGL Resources Pty Ltd T/A UGL Resources [2012] FWA 3453

Jones v Barminco Pty Ltd (2001) 81 WAIG 1183

Maughan Thiem Auto Sales Pty Ltd v Cooper [2014] FCAFC 94; (2014) 222 FCR 1

Maurice Alexander Management Pty Ltd v Sato [2023] ICQ 14

Norwest Beef Industries Ltd v West Australian Branch, Australian Meat Industry Employees Union, Industrial Union of Workers, Perth (1984) 64 WAIG 2124

Pooley v Commissioner of Police [2008] WAIRC 00216; 88 WAIG 310

Public Transport Authority of Western Australia v Yoon [2017] WASCA 25; (2017) 97 WAIG 249

Re Harrison; Ex parte Hames [2015] WASC 247

Robe River Iron Associates v Amalgamated Metal Workers’ and Shipwrights Union of Western Australia & Ors (1987) 67 WAIG 1097

Short v FW Hercus Pty Ltd [1993] FCA 51

Spasojevic v Speaker of the Legislative Assembly [2023] WAIRC 00001; (2023) 103 WAIG 138

The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WAIRC 00830; (2017) WAIG 366

WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536

Reasons for Decision

1         These reasons use the abbreviations contained in the list at the end of the reasons.

2         The applicant, United Workers Union, and the respondent health service providers, are party to two industrial agreements that cover employees in the Western Australian health system:

(a) The Enrolled Nurses Agreement; and

(b) The Hospital Support Workers Agreement.

3         Both industrial agreements have clauses providing long service leave for casual employees.

4         The casual LSL clauses grant 13 weeks’ paid long service leave on the completion of 10 years of continuous service and an additional 13 weeks’ paid long service leave for each subsequent period of seven years of completed continuous service.

5         UWU and the HSPs are in dispute about the way service should be recognised for the purpose of long service leave under the casual LSL clauses.

6         UWU says that ‘continuous service’ under the casual LSL clauses includes all qualifying service with the relevant employer prior to the registration of the industrial agreements.

7         The HSPs say that ‘continuous service’ under the casual LSL clauses excludes service with the relevant employer prior to the registration of an industrial agreement which contained long service leave for casual employees.

8         UWU applied to the Commission for a declaration as to the true interpretation of the casual LSL clauses under s 46 of the IR Act to resolve this industrial dispute. I must decide what is the correct meaning of the phrase ‘continuous service’ as it is used in the casual LSL clauses.

9         This dispute about meaning arises in these circumstances: the inclusion of casual LSL clauses in these parties’ industrial agreements is relatively new. Under their pre‑2021 industrial agreements, no provision was made for long service leave for casual employees, so that casual employee long service leave entitlements were derived from the LSL Act.

10      The LSL Act entitlements are less generous compared with the entitlements under the post‑2020 industrial agreements. In particular, the LSL Act provides long service leave of 8 2/3 weeks after 10 years’ continuous service, compared with 13 weeks under the post‑2020 industrial agreements for the same qualifying period.

11      If UWU is correct in its construction of the casual LSL clauses, then a casual employee who, today, has been employed for 10 or more years with a HSP will be entitled to take 13 weeks of long service leave (subject to their service otherwise qualifying as continuous service).

12      The HSPs’ case appears to assume that if their construction is correct, then the same casual employee with 10 years’ service with a HSP, will be entitled to take long service leave but in an amount that is less than 13 weeks: a proportion of 8 2/3 weeks for service prior to the registration of the relevant industrial agreement introducing long service leave for casual employees, and a proportion of 13 weeks for service after the registration of the relevant industrial instrument.

13      However, on my analysis, the true legal effect of the HSPs contended for construction is that a casual employee with 10 years’ service with an HSP will have no entitlement to take long service leave, because pre‑2021 service will not be counted as continuous service for the purpose of the long service leave entitlement.

14      My conclusion is that UWU’s construction is correct.

Principles in s 46 applications

15      Section 46 of the IR Act empowers the Commission to declare the true interpretation of an industrial agreement on the application of any employer, organisation or association that is bound by it, while it is in force.

16      Her Honour Acting President Smith (as she then was) summarised the nature and purpose of s 46 in The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WAIRC 00830; (2017) WAIG 366 at [100]:

From the authorities referred to above and the express provisions of s 46 and s 83 of the Act, the following principles emerge in respect of an award as defined in s 46(5):

(a) The power to interpret the true meaning of an award, pursuant to the power conferred by s 46, is to enable a determination of whether ambiguity arises and to resolve it, if it does.

(b) If a provision in question is capable in the ordinary sense of not having an ambiguous meaning, then consideration of the expressed or supposed intention of the provision does not fall to be considered under s 46.

(c) If a provision is found to be ambiguous, the Commission acting pursuant to s 46 can embark upon a fact‑finding exercise to determine the surrounding circumstances that existed when the award or industrial agreement was made. These surrounding circumstances can include ascertaining the object of the provision by:

(i) inquiring into the history of the award;

(ii) any established custom, practice or usage which led to the making of the award and any relevant established custom, usage and practice since the award was made.

(d) If ambiguity is found and after ascertaining the true meaning of the award and declaring its effect it is found the words in the provision in question are defective, in that the words do not put into effect or reflect that meaning or it is found that the words used require amendment to give fuller effect to the true meaning, the Commission is authorised to exercise arbitral power to amend the provision.

(e) The power to interpret an award or industrial agreement pursuant to s 46 of the Act is, except for the power to amend a provision in s 46(1)(b), merely declaratory and any declaration made cannot be made as an order to enforce a right.

(f) The determination of whether a particular employee has an entitlement pursuant to the provisions of an award is an enforcement matter in relation to which the Industrial Magistrate has exclusive jurisdiction to determine, pursuant to the power conferred by s 83 of the Act.

17      Her Honour’s summary of principle (b) drew from the statement of Olney J in Norwest Beef Industries Ltd v West Australian Branch, Australian Meat Industry Employees Union, Industrial Union of Workers, Perth (1984) 64 WAIG 2124 at 2133. His Honour pointed out that the first task in every case will be to determine whether words used are capable in their ordinary sense of having an unambiguous meaning. If yes, then further consideration of the expressed or supposed intention is not required, or indeed permitted.

18      Although Norwest Beef concerned the interpretation of an award, rather than an industrial agreement, the Industrial Appeal Court has held that the same approach applies to interpretation of an industrial agreement under s 46: Robe River Iron Associates v Amalgamated Metal Workers’ and Shipwrights Union of Western Australia & Ors (1987) 67 WAIG 1097 at 1098.

19      When s 46 is invoked, the Commission must ascertain whether the agreement is ambiguous, and if it is, resolve the ambiguity, in other words, construe the agreement. The principles that apply to construction are well settled. They were summarised by Beech J in Re Harrison; Ex parte Hames [2015] WASC 247 at [50]:

The general principles relevant to the proper construction of instruments are well‑known. In summary:

(1) the primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;

(2) it is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties' subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean;

(3) the objectively ascertained purpose and objective of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context;

(4) the apparent purpose or object of the relevant transaction can be inferred from the express and implied terms of the instrument, and from any admissible evidence of surrounding circumstances;

(5) an instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ; and

(6) an instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation.

20      Additionally:

The words of a clause in a written agreement are to be given the most appropriate meaning which they can legitimately bear. A court must have regard to all of the provisions of the agreement with a view to achieving harmony among them. See Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, 109‑110 (Gibbs J). These propositions are applicable to instruments generally, subject to any particular rules of construction which have been developed in relation to a particular kind of provision or instrument.

Director General, Department of Education v United Voice WA [2013] WASCA 287; (2014) 94 WAIG 1 per Buss J at [83].

21      Where the particular kind of instrument being construed is an industrial agreement:

The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378 (French J). The interpretation “... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...”: Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378‑9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a ‘practical bent of mind’ and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited [1996] IRCA 166; (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).

WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197].

The Enrolled Nurses Agreement

22      The Enrolled Nurses Agreement was registered under s 41 of the IR Act.

23      The Enrolled Nurses Agreement applies to employees engaged to work in the classifications listed in the Enrolled Nurses Award, namely enrolled nurses, advanced skill enrolled nurses and assistants in nursing.

24      At the time of registration it was estimated the Enrolled Nurses Agreement covered 3,518 employees.

25      The registration of the Enrolled Nurses Agreement had the effect of cancelling and replacing the 2020 Enrolled Nurses Agreement: cl 4.5, IR Act s 41(8).

26      The Enrolled Nurses Agreement is expressed to apply to the exclusion of the Enrolled Nurses Award, Miscellaneous Government Conditions and Allowances Award No A4 of 1992 and the Health Workers Community and Child Health Services Award 2000: cl 7.

27      ‘Casual Employee’ is defined in the Enrolled Nurses Agreement to mean an Employee engaged by the hour, with no guarantee of continual or additional employment: cl 3.8.

28      Clause 14 states:

14.1 A casual Employee will be paid a loading of 25% of the ordinary rate of pay for the class of work on and from the date of registration of this Agreement.

14.2 The minimum period of engagement of a casual Employee will be two hours on each engagement.

14.3 Casual Employees are not entitled to paid leave under this Agreement, unless a clause in this Agreement specifically provides the entitlement.

14.4 Casual Employees are entitled to not be available to attend work, or to leave work for the purposes of caring responsibilities.

14.5 Casual Health Workers may only be engaged for unplanned short term work requirements.

14.6 The Employer will take into account prior experience when determining the appropriate classification for casual Employees.

29      Various terms and conditions of the Enrolled Nurses Agreement are service related. For instance:

(a) The requirement for employer notice of termination is scaled depending on the employee’s period of ‘continuous service’ from not more than 3 years to more than five years continuous service: cl 13.4.

(b) Some classifications are defined by reference to the number of ‘years of employment’ as an Enrolled Nurse, where ‘year of employment’ is defined by reference to ‘service’ which is also defined: cl 24.

(c) Rural gratuity payments are dependent on completion of two years’ continuous service with the WA Country Health Service in particular localities, with ‘continuous service’ being defined: cl 32.

30      Most of the leave provisions of the Enrolled Nurses Agreement are also service related: ‘Annual Leave’ cl 40, ‘Personal Leave’ cl 46, ‘Maternity Leave’ cl 48, ‘Adoption Leave’ cl 48A, and ‘Other Parent Leave’ cl 48B all refer to ‘continuous service’ and/or continuous employment as a condition for the relevant leave entitlement.

31      Clause 43 deals with long service leave for employees other than casual employees. Clause 43.1 expressly excludes casual employees from the entitlement under cl 43. Relevant parts of cl 43 are reproduced below:

43. LONG SERVICE LEAVE

43.1 Long Service Leave Entitlement

Subject to the conditions of this clause all Employees, except a casual Employee will become entitled to 13 weeks’ Long Service Leave after:

(a) a period of 10 years continuous service.

(b) each further period of seven years continuous service.

43.2 …

43.3 …

43.4 Service counted for Long Service Leave

(a) For the purpose of this clause ‘service’ means service as an Employee of a Western Australian Public Sector Employer and will be deemed to include:

(i) absence of the Employee on an Annual Leave or public holidays;

(ii) absence of the Employee on paid sick or on an approved rostered day off;

(iii) absence of the Employee on approved sick leave without pay except that portion of a continuous absence which exceeds three months;

(iv) absence of the Employee on approved leave without pay, other than sick leave but not exceeding two weeks’ in any qualifying period;

(v) absence of the Employee on National Service or other military training, but only if the difference between the Employees’ military pay and their civilian pay is made up or would, but for the fact that their military pay exceeds their civilian pay, be made up by their Employer;

(vi) absence of the Employee on worker’s compensation for any period not exceeding six months, or for such greater period as the Employer may allow;

(vii) absence of the Employee on Long Service Leave;

(viii) absence of an Employee on approved leave to attend Trade Union training courses or on approved leave to attend Trade Union business; and

(ix) employment in the service of the Commonwealth or another State of Australia as provided in subclause 43.16.

(b) The service of an Employee will be deemed not to include:

(i) service of an Employee after the day on which they have become entitled to 26 weeks’ Long Service Leave until the day on which they commence the taking of 13 weeks’ of that leave;

(ii) any period of service with an Employer of less than 12 months. Provided where an Employee has service of a month or more but less than 12 months immediately prior to being transferred by one State Government Employer to another, becoming redundant or qualifying for pro rata payment in lieu of leave pursuant to subclause 43.11, such period of service will count; and

(iii) any other absence of the Employee except such absences as are included in service by virtue of subclause 43.4(a).

(c) Subject to the provisions of subclauses 43.4(a) and 43.4(b), the service of an Employee will not be deemed to have been broken:

(i) by resignation, if they resign from one Western Australian Public Sector Employer and commences with another Western Australian Public Sector Employer within one working week of the expiration of any period for which payment in lieu of Annual Leave and/or public holidays has been made by the Employer from which the Employee resigned, or, if no such payment has been made, within one working week of the day on which their resignation becomes effective;

(ii) if their employment is ended by their Employer for any reason other than serious misconduct, but only if:

(1) the Employee resumes employment with a Western Australian Public Sector Employer not later than six months from the day on which their employment ended; and

(2) payment pursuant to subclause 43.11 has not been made; or

(iii) by any absence approved by the Employer as leave whether with or without pay.

32      The casual LSL clause says:

44. LONG SERVICE LEAVE FOR CASUAL EMPLOYEES

44.1 A Casual Employee will be entitled to 13 weeks’ paid Long Service Leave, taken in one continuous period, on the completion of 10 years of continuous service and an additional 13 weeks’ paid Long Service Leave for each subsequent period of seven years of completed continuous service.

44.2 Payment while on Long Service Leave will be at the Casual Employee’s ordinary rate of pay plus payment of the casual loading provided for at clause 14.1 of this Agreement.

44.3 On application by the Casual Employee, the Employer may approve a Casual Employee taking:

(a) Any accrued entitlement to Long Service Leave in minimum periods of one day.

(b) Double the period of Long Service Leave on half pay, in lieu of the period of Long Service Leave entitlement on normal pay, as prescribed at subclause 44.2, or half the period of Long Service Leave on double pay, in lieu of the period of Long Service Leave entitlement on normal pay.

(c) Any portion of their Long Service Leave entitlement on normal pay, as prescribed at subclause 44.2, or double such period on half pay or half such period on double pay.

44.4 A Casual Employee may, with the Employer’s agreement, cash out any portion of a Long Service Leave entitlement accrued under subclause 44.1 in lieu of taking the leave.

44.5 A Casual Employee who ceases employment in the WA Health System will receive payment for any accrued Long Service Leave on termination.

Is there ambiguity?

33      The Enrolled Nurses Agreement uses the term ‘continuous service’ in several places. It defines ‘service’ for some specific clauses, but it does not define ‘service’ or ‘continuous service’ for general purposes.

34      The term ‘continuous service’ has a commonly understood, plain, industrial meaning derived from the combination of the ordinary common sense meaning of the two words that it comprises: ‘continuous’ meaning a connected and unbroken period and ‘service’ meaning experience performing duties for an employer: see Browne v Director General, Department of Water and Environmental Regulation [2020] WASCA 16, per Le Miere J at [119], Holland v UGL Resources Pty Ltd T/A UGL Resources [2012] FWA 3453 at [20]‑[22] and McCallum, R. C, Butterworths Employment and Law Dictionary, (1997).

35      ‘Continuous service’ ordinarily means a period of unbroken service to an employer by an employee.

36      In some places, the Enrolled Nurses Agreement uses the different phrase ‘continuous employment’. The distinction between ‘service’ and ‘employment’ was considered by Cicchini IM in Jones v Barminco Pty Ltd (2001) 81 WAIG 1183. The issue in that case was whether annual leave accrued under the MCE Act while an employee was not at work but in receipt of workers’ compensation payments. The MCE Act provided for annual leave to accrue for ‘each year of service’. The learned Industrial Magistrate said at 1188‑1189 (original emphasis):

The complainant argues for the reasons previously stated that “each year of service” is to be read “each year of employment”. I respectfully disagree. The word “service” has been specifically used by the legislature. It is not appropriate to substitute it with another word. “Service” is capable of definition and has its own particular meaning. The CCH Macquarie Dictionary of Employment and Industrial Relations defines “service” to mean:

“the performance of duties as a servant; employment in duties or work for another.”

It is apparent from the definition referred to above that the word “service” connotes more than the contractual relationship between the employer and employee. Indeed it expressly addresses the performance of duties and the carrying out of work. It is axiomatic that duties are not performed and an employee does not carry out work whilst on workers’ compensation. Annual leave can only accrue whilst the employee is engaged in the regular performance of duties as a servant and during any consensual rest period that relates thereto. If an employee is precluded from carrying out such duties on account of injury, then during such period of incapacity the employee cannot be said to be providing a service to his or her employer notwithstanding that the employee remains within the employment relationship.

37      The HSPs have not pointed to anything in the text of the Enrolled Nurses Agreement, read as a whole, that suggests the term does not have its ordinary meaning.

38      I find nothing in the agreement, read as a whole, which tells against it having its ordinary meaning. Rather, there are several factors which favour the ordinary meaning.

39      First, the frequency of the use of the term throughout the agreement is itself an indication that the term has a plain and commonly understood meaning, and that the ordinary meaning is being invoked.

40      Second, there are instances where the ordinary meaning is expressly enlarged or qualified: cl 24, cl 32 and cl 43. This indicates that in the absence of qualification or enlargement, the term is intended to have its ordinary meaning.

41      Third, the nature of service related entitlements themselves indicate that the term is intended to have its ordinary meaning. For example, it would be industrially nonsensical for notice of termination of employment to be determined by continuous service if the term meant something other than unbroken consecutive service with the employer. If continuous service was limited to post‑2020 service, the whole idea of notice of termination being linked to longevity of service is undermined.

42      Words used in an industrial agreement should be given meaning so as to operate consistently and harmoniously, with the agreement read as a whole. It would be contrary to this principle to give the term ‘continuous service’ its ordinary meaning for some purposes, but a different, qualified meaning in the casual LSL clause.

43      The HSPs argue that the term ‘continuous service’ is ambiguous. They do so, based on the genesis or history of the entitlement.

44      The HSPs demonstrate, by carefully tracking the interaction between the applicable awards, industrial agreements and the LSL Act, that casual employees had an entitlement to long service leave under the LSL Act prior to the introduction of a casual LSL clause in the 2020 Enrolled Nurses Agreement. They say, therefore:

In that context, the purpose of introducing cl 44.1 was not to confer upon casuals a right to long service leave for the first time, rather, the purpose was to confer upon casuals an entitlement to long service leave under an industrial instrument for the first time such that it would replace the then existing scheme for casuals to accrue and take long service leave under the LSL Act.

In that context, it is apparent that there is ambiguity as to the meaning of “service” in cl 44.1. Does the term “service” mean any and all service provided by a casual, whether before or after registration of the 2020 EN Agreement? Or does it only mean service provided on and from the date of registration of the 2020 Agreement?

45      This history is uncontroversial:

(a) The 2020 Enrolled Nurses Agreement was registered on 27 May 2021.

(b) The 2020 Enrolled Nurses Agreement contained at cl 44.1 and cl 44.2 terms relating to long service leave for casuals that are identical to the terms of cl 44.1 and cl 44.2 of the Enrolled Nurses Agreement. But the 2020 Enrolled Nurses Agreement did not include cl 44.3 and cl 44.5 which were included in the Enrolled Nurses Agreement for the first time.

(c) The 2020 Enrolled Nurses Agreement replaced the 2018 Enrolled Nurses Agreement.

(d) The 2018 Enrolled Nurses Agreement provided for long service leave at cl 43 but that clause did not apply to casual employees.

46      It is also uncontroversial that casual employees were not eligible for long service leave under any industrial agreement or award before the 2020 Enrolled Nurses Agreement, but were eligible for long service leave under the LSL Act.

47      It is legitimate to look at the history of the clause for the purpose of construing it. In Short v FW Hercus Pty Ltd [1993] FCA 51 at [7]‑[8], Burchett J infused the relevant principles with a dash of charm when he said:

[7] …Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.

[8] That much is fairly clear. Where there is seen to be a difficulty, the court can often go to the history of the matter. A number of illustrations will be found in Nurses (South Australia) Award (Interpretation) Case (ubi supra). But an ambiguity or obscurity may not be immediately seen on the face of a document. Both the problem and its solution may appear only when the wider context from which an expression first sprang is brought to notice. Is the court then forbidden to look past the document itself that is before it?...

See also FreshFood Management Services Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) [2023] FWCFB 97.

48      However, the HSPs reliance on the history of the casual LSL clause involves a non sequitur. The conclusion that there is ambiguity does not follow from the premise. The history does not reveal some nuances of language or a problem with the ordinary meaning. The history does not reveal that the phrase now in question, ‘continuous service’, has historically been used to mean something other than its ordinary meaning, or that the parties had some common understanding about what the phrase meant. The history does not indicate a purpose or intent that is not apparent from the text of the agreement.

49      The HSPs say that from the date of registration of the 2020 Enrolled Nurses Agreement, employees ceased to be employees for the purposes of the LSL Act and ‘ceased to be entitled to accrue long service leave under the LSL Act’. Their submissions proceed on the basis that there was, but is no longer, an entitlement to accrue annual leave under the LSL Act. The HSPs treat long service leave as involving accrual as a separate and distinct element of a long service leave entitlement.

50      The question of whether accrual of long service leave is an entitlement was not fully explored or argued in this matter.

51      I observed in Spasojevic v Speaker of the Legislative Assembly [2023] WAIRC 00001; (2023) 103 WAIG 138 at [55], citing Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) [2019] FCAFC 138; (2019) 289 IR 29 at [147], that paid leave entitlements generally involve two components: the entitlement to be absent from work and the entitlement to be paid in respect of such absence despite not rendering service. For some types of leave, there may be additional entitlements attached to the leave, such as an entitlement to be paid in lieu of taking leave, or an entitlement to leave loading.

52      The character of long service leave accrual was considered by the Industrial Court of Queensland in Maurice Alexander Management Pty Ltd v Sato [2023] ICQ 14. There, a casual employee claimed an entitlement to long service leave under the Industrial Relations Act 1999 (Qld) (repealed) in circumstances where her employment was covered by a series of industrial agreements made under the Workplace Relations Act 1996 (Cth) and the Fair Work Act 2009 (Cth) (FWA). A 2006 agreement expressly provided for casual loading to be paid ‘in lieu of any entitlement to paid annual leave, paid personal leave, long service leave’. The employer argued that the payment of casual loading under the 2006 agreement meant that service while that agreement applied should not be counted as continuous service under the Industrial Relations Act 1999 (Qld).

53      At first instance, the Industrial Commission held that there was a distinction between an entitlement to long service leave and the accrual leading to an entitlement to long service leave. Further, the entitlement to long service leave only arose after 10 years’ continuous service was complete. Accordingly, the 2006 agreement did not operate to exclude service under it from the calculation of the entitlement to long service leave.

54      President Davis of the Industrial Court of Queensland disagreed with this approach, observing at [36]‑[38]:

[36] As the Industrial Commissioner held, on a particular day, long service leave crystallises as a right to take leave with pay. It crystallises though because the employee has a right to have periods of service counted towards the ultimate entitlement to long service leave. The entitlement to long service leave is a right to paid leave when a specified term of service has been achieved.

[37] The casual loading is, in effect, a periodically paid sum which is designed to extinguish various “entitlements”. It does that by compensating the employee with inflated pay rates to extinguish the benefit of the otherwise accruing “entitlements”.

[38] Construed in that context, it is the service which is accruing and which ultimately crystallises into an entitlement to take paid long service leave. On a proper construction of clause 13.1, “the entitlement” to long service leave is the right to count service under the 2006 agreement towards an ultimate long service leave entitlement. I therefore respectfully disagree with the conclusion reached by the Industrial Commissioner and ground 2 of the appeal is made out.

55      In Maughan Thiem Auto Sales Pty Ltd v Cooper [2014] FCAFC 94; (2014) 222 FCR 1, Katzmann J recognised that where s 113(3)(a) of the FWA used the phrase ‘would have entitled the employee to long service leave’, the phrase had two possible meanings, the first being reference to terms that provide for an entitlement to long service leave, and the second being an entitlement that would have actually accrued. In the context of s 113 of the FWA, her Honour preferred the first meaning: [42]. That approach was cited with approval by Raper J in Conroy’s Smallgoods v Australasian Meat Industry Employees Union [2023] FCAFC 59 at [29].

56      In Public Transport Authority of Western Australia v Yoon [2017] WASCA 25; (2017) 97 WAIG 249 at [59], Buss and Murphy JJ of the Industrial Appeal Court noted that what was then s 4(3) of the LSL Act recognised the distinction between a contingent entitlement not yet accrued, and an accrued entitlement, by s 4(3) of the LSL Act’s use of the words ‘entitled to, or eligible to become entitled to’.

57      These cases indicate that accrual of long service leave is something short of a crystalised ‘entitlement’, but nevertheless is capable of having some legal effect.

58      Further, s 49D of the IR Act and s 26 of the LSL Act oblige employers to keep certain employment related records, including ‘the information necessary for the calculation of, and payment for, long service leave under the LSL Act or an industrial instrument’: s 49D(2)(g). Clearly employers are obliged to record how long service leave is accrued.

59      But there remains a question as to whether the accrual of long service leave is an entitlement in its own right, in the sense that the HSPs use the word ‘entitled’. The HSPs did not demonstrate that it was.

60      If the long service leave entitlement is untethered from the concept of accrual, the ‘problem’ the HSPs are seeking to fix by their contended for construction, disappears. It cannot be said that the ordinary meaning of ‘continuous service’ in the casual LSL clause results in a change to any entitlement when the 2020 Enrolled Nurses Agreement was registered because there is no accrual entitlement.

61      The HSPs also say that if the parties had intended the casual LSL clause to apply to pre‑2021 service they could have expressly stated as much. This point does not reveal ambiguity. In any event, there is an answer to it. There is no need to expressly include pre-registration or pre‑2021 service, because the plain meaning of ‘continuous service’ includes pre-registration service.

62      None of the other clauses in the agreement referring to ‘continuous service’ expressly state that service prior to registration is good service for the purpose of those clauses. The ordinary meaning is such that there is no need to.

63      The HSPs ask the Commission to give the words ‘continuous service’ the meaning:

…service provided on and from the date the entitlement first appeared in an industrial instrument which applied to the casual [employee]…

64      Articulating the contended for meaning, reveals that the HSPs are not arguing for a meaning that is an alternative to the ordinary meaning. Rather, what the HSPs argue is for the ordinary meaning plus a qualification or limitation.

65      This tells me that this is not a case of ambiguity.

66      It also shows that the contended for meaning is one which the words ‘continuous service’ cannot properly bear. The contended for meaning is not consistent with the text the parties have chosen to use. It is not what a reasonable person reading the casual LSL clause would understand the words to mean. It is simply without any textual foothold.

67      The term is unambiguous. Because the meaning of the term is plain, no further inquiry is necessary.

68      However, even if I had been persuaded that there was ambiguity, I would nevertheless have come to the same conclusion as to meaning after considering relevant context. My reasoning is set out below.

Industrial character and purpose of industrial agreements generally

69      The legislative scheme under which the Enrolled Nurses Agreement was made is relevant context from which the objective intention of the parties can be gleaned.

70      Some of the Objects of the IR Act are:

(a) to promote collective bargaining and to establish the primacy of collective agreements over individual agreements: s 6(ad);

(b) to ensure all agreements registered under the Act provide for fair terms and conditions of employment: s 6(ae); and

(c) to provide for the observance and enforcement of agreements: s 6(d).

71      To these ends, Part II Division 2B of the IR Act deals with the negotiation of, making, registration and effect of industrial agreements. Section 41 relevantly provides:

41. Industrial agreements, making, registration and effect of

(1) An agreement with respect to any industrial matter or for the prevention or resolution under this Act of any related disputes, disagreements, or questions may be made between an organisation or association of employees and any employer or organisation or association of employers.

(1a) …

(1b) …

(2) Subject to subsection (3) and sections 41A and 49N, where the parties to an agreement referred to in subsection (1) apply to the Commission for registration of the agreement as an industrial agreement the Commission must register the agreement as an industrial agreement.

(3) 

(4) An industrial agreement extends to and binds —

(a) all employees who are employed —

(i) in any calling mentioned in the industrial agreement in the industry or industries to which the industrial agreement applies; and

(ii) by an employer who is —

(I) a party to the industrial agreement; or

(II) a member of an organisation of employers that is a party to the industrial agreement or that is a member of an association of employers that is a party to the industrial agreement;

and

(b) all employers referred to in paragraph (a)(ii),

and no other employee or employer, and its scope must be expressly so limited in the industrial agreement.

(5) An industrial agreement operates —

(a) in the area specified in the agreement; and

(b) for the term specified in the agreement.

(6) Notwithstanding the expiry of the term of an industrial agreement, it continues in force in respect of all parties to the agreement, except those who retire from the agreement, until a new agreement or an award in substitution for the first-mentioned agreement has been made.

(7) At any time after, or not more than 30 days before, the expiry of an industrial agreement any party to the agreement may file in the office of the Registrar a notice in the approved form signifying the party’s intention to retire from the agreement at the expiration of 30 days from the date of the filing, and, on the expiration of that period, the party ceases to be a party to the agreement.

(8) When a new industrial agreement is made and registered, or an award or enterprise order is made, in substitution for an industrial agreement (the first agreement), the first agreement is taken to be cancelled, except to the extent that the new industrial agreement, award or order saves the provisions of the first agreement.

(9) To the extent that an industrial agreement is contrary to or inconsistent with an award, the industrial agreement prevails unless the agreement expressly provides otherwise.

72      These features of the Act’s scheme were described by his Honour Ritter AP (as he then was) in Pooley v Commissioner of Police [2008] WAIRC 00216; 88 WAIG 310 at [49] and [57]. In those passages, his Honour relevantly pointed out:

[57] …

(a) The purpose of an industrial agreement is to prevent or resolve disputes, disagreements or questions relating to industrial matter: s 41(1)

(b) An industrial agreement operates in the area specified in the industrial agreement and for the term specified in the industrial agreement. However, an agreement becomes an industrial agreement only if and when it is registered as such by the Commission: citing Department of Community Services per Franklyn J at 1711 and 1712, Nicholson J at 1713. That is, an industrial agreement takes effect only from the date of its registration.

(c) An industrial agreement continues in force in respect of all parties, except those who retire from it, until a new agreement or an award in substitution for it has been made.

(d) When a new industrial agreement is made and registered, the earlier industrial agreement is cancelled, except to the extent that the new industrial agreement saves the provisions of the earlier agreement; and

(e) Section 41(9) establishes the primacy of an industrial agreement over an award.

…

73      While industrial agreements only take effect from their date of registration, the parties may agree that entitlements begin from some earlier date. The agreement will not have effect until registered, but once it is registered and effective, parties are bound by its terms, including those which impose obligations or confer rights of a retrospective nature. The IR Act does not preclude parties making industrial agreements that have some retrospective effect: Director General of the Ministry for Culture and Arts v The Civil Service Association of Western Australia Incorporated & Ors [2000] WASCA 13; (2000) 80 WAIG 453 at [38].

74      The fact that registration of an industrial agreement has the effect of cancelling a previous agreement has been described as a ‘key aspect’ of industrial agreements under the IR Act. Once an industrial agreement is registered, it is the only industrial agreement that governs the terms and conditions of employees covered by it: Pooley at [74]‑[75].

75      The HSPs’ contended for construction would do three things that are inconsistent with the scheme of the IR Act described above.

76      First, it would require recourse to earlier, cancelled industrial agreements to ascertain the point in time when a casual long service leave entitlement was introduced. A cancelled industrial agreement would effectively then determine the casual long service leave entitlement. This is contrary to the scheme which contemplates that the Enrolled Nurses Agreement operates during its term as the source of employee entitlements.

77      Second, it would undermine the primacy of Enrolled Nurses Agreement.

78      Third, it would create uncertainty about the terms and conditions that apply to casual employees in relation to their pre‑2021 service because it would not be obvious to people who read the Enrolled Nurses Agreement from what date service is counted. This is the type of ‘industrial anarchy’ Olney J was referring to in Norwest Beef at 2133. It hinders the observance and performance of agreements.

79      UWU points to the IR Act’s object of promoting equal remuneration as further statutory context supporting its contended for construction. It says in this regard that its construction puts casual employees on an equal footing to non-casual employees in relation to long service leave entitlements. I note though, that when the IR Act refers to ‘equal remuneration’ it means equal remuneration for men and women for work of equal or comparable value: s 7.

80      Nevertheless, the legislative context, and the industrial character and purpose of industrial agreements, is against the construction the HSPs contend for.

The LSL Act

81      The LSL Act is also relevant statutory context for the purpose of resolving constructional issues.

82      The HSPs say that to give the phrase ‘continuous service’ its ordinary meaning and include pre‑2021 service would be inconsistent with the scheme of the LSL Act, which is that it does not operate in tandem with another scheme for long service leave.

83      It is not in dispute that the intention of the legislature was that the LSL Act does not operate in tandem with another scheme for long service leave. This was confirmed by the Industrial Appeal Court in Yoon per Buss and Murphy JJ at [63]:

[63] In other words, where the s 4(3) comparison results in the person being an ‘employee’ for the purposes of the LSL Act, and thereby entitled to leave under the LSL Act, ‘[t]he entitlement’ under the LSL Act applies in substitution for, and satisfaction of, ‘any’ long service leave entitlement under the other instrument. There appears to be no dual operation intended. Section 7(1) is complemented by s 7(2), which refers to the grant of leave ‘under any long service leave scheme and irrespective of this Act’ (emphasis added). The effect of s 7(2) is that where, by virtue of s 4(3), the LSL Act applies, but, in fact, there has been a grant of leave (or a payment in lieu) under any other long service leave ‘scheme’, then that is taken into account in calculating the employee’s entitlement to long service leave under the LSL Act as if it were long service leave taken (or payment in lieu made) under the LSL Act. Sections 7(2) and (3) indicate that when the statutory entitlement applies, it applies to the exclusion of the scheme under the other instrument. In other words, it appears that the legislature did not (objectively) intend that the two schemes should operate in tandem. On that basis, there could be no prospect of any doubling-up between the two.

84      To give the phrase ‘continuous service’ its ordinary meaning does not infringe the scheme as described in Yoon. To the contrary, it is consistent with this scheme. It means that the only instrument that applies in determining a person’s entitlement to take long service leave at a point in time after registration of the agreement is the agreement itself.

85      This is precisely how the Industrial Appeal Court contemplated the interaction between the LSL Act and other industrial instruments. At [59], the majority observed:

…the comparison required by s 4(3) does not have its focus on the individual’s employment history from time to time (as the comparison is to be undertaken irrespective of any accrual of entitlement) but, rather, on the person’s entitlement as appears from the terms of the two respective instruments (the LSL Act and the other instrument).

86      The majority concluded at [61]:

The foregoing considerations indicate that the comparison required by s 4(3) is to be made prospectively by reference to the terms of the respective instruments, rather than from time to time during the course of the employment history of a particular employee. That construction is confirmed by a consideration of s 7 of the LSL Act.

87      It is the HSPs case that commits the error of treating something under the LSL Act as being preserved, after the agreement’s registration. The HSPs’ case requires the LSL Act scheme to run in tandem with the scheme under the agreement, contrary to the LSL Act scheme.

88      The legal position, in accordance with what the Industrial Appeal Court said in Yoon, is that once the casual LSL clauses came into effect, the LSL Act ceased to have effect. So, if the HSPs’ contended for construction was correct, the result would be that employees’ pre‑2021 service will count for nothing in determining their long service leave entitlements, unless an accrued entitlement was exercised pre‑2021. This is obviously contrary to the agreement’s objective intention given the nature and purpose of long service leave.

The Enrolled Nurses Agreement’s text read as a whole

89      Ordinarily a constructional analysis should start with consideration of the agreement’s text viewed as a whole, including the disputed provision’s place in the agreement and the agreement’s arrangement. I have left this topic to this point in my reasons because:

(a) I considered the agreement as a whole under the heading ‘Is there ambiguity’; and

(b) The HSPs do not rely upon any contextual matters in support of their contended for construction.

I will just add one additional point here.

90      Clause 43 sets out certain breaks in service which are not counted as breaking continuity of service for the purpose of long service leave for employees other than casuals. It enlarges the ordinary and natural meaning of ‘continuous service’ by deeming that service includes periods during which the employee is not employed and periods when an employee is not performing service.

91      To give ‘continuous service’ its ordinary meaning in the casual LSL clause means that it has a narrower meaning, for casual long service leave purposes, compared with the provisions for other employees.

92      To narrow the meaning of ‘continuous service’ further, as the HSPs would do, creates an even greater gulf in long service leave conditions as between casual employees and other employees, with no apparent justification. The HSPs say that there is no need to strive for parity between casual employees and other employees because the terms and conditions for both are different, including because casual employees receive a 25% pay loading. I agree. But parity is one thing. Anomalies are another. In my view the HSPs contended for further qualification creates an unjustifiable anomaly.

The purpose of long service leave

93      Long service leave involves ‘the concept of receiving paid leave from work as a reward for an extended period of continuous service’: Creighton B and Stewart A, Labour Law, (5th ed, 2010) at [13.128]‑[13.129]. Its purpose is to reward long service, and provide respite from work for recuperative purposes: Yoon at [42].

94      This supports ‘continuous service’ having its ordinary meaning. The idea that the entitlement should be based on a period of continuous service that is limited based on registration of the agreement is contrary to the nature and purpose of long service leave.

The double dipping argument

95      The HSPs submit that to give the words ‘continuous service’ their ordinary meaning would duplicate long service leave entitlements for some casuals which is inconsistent with the objective intention of the parties and the scheme set up by the LSL Act.

96      The double‑dipping argument is that, in the absence of a provision to set‑off long service leave accrued or taken under the LSL Act, counting continuous service as including pre‑2021 service would be to confer dual entitlements on employees who have accrued an entitlement to take long service leave pre‑2021. The HSPs give the example of an employee who has 17 years of continuous service immediately prior to 27 May 2021. The HSPs say such an employee will have an enforceable entitlement to one fully accrued long service leave entitlement under the LSL Act and two fully accrued long service leave entitlements under the 2020 Enrolled Nurses Agreement.

97      The HSPs do not say how this practical outcome results.

98      Section 4A(4) of the LSL Act provides:

This Act does not apply to an employee who has a separate LSL entitlement to take long service leave and to be paid on termination instead of long service leave that is at least equivalent to the entitlement to WA LSL to take long service leave and to be paid on termination instead of long service leave.

99      It is common ground that the casual LSL clause meets the criteria in s 4A(4), so that, upon registration, casual employees covered by it ceased to be ‘employees’ for the purpose of the LSL Act. While Yoon addressed the effect of the now repealed s 4(3) of the LSL Act, s 4A appears to have the same intended effect, being that described at [63] in Yoon: to remove any prospect of doubling up.

100   What about an employee who has been continuously employed for 17 years as at 27 May 2021, and took long service leave before 27 May 2021; would that employee have another entitlement to long service leave under the casual LSL clause?

101   The HSPs say there is nothing in the Enrolled Nurses Agreement which provides a mechanism to deduct leave already taken from the entitlement the casual LSL clause confers, and that this supports their contended for construction, because it means a casual employee will receive two lots of long service leave for the same period of service: one under the LSL Act and one under the agreement.

102   Clearly the Enrolled Nurses Agreement does not say that leave taken pre‑2021 must be set‑off or deducted. Maybe that is because it is so obvious, it goes without saying. No reasonable person reading the Enrolled Nurses Agreement would understand that the casual LSL clause conferred an additional entitlement to long service leave if it had been taken earlier.

103   In any event, accepting that it was not intended that the agreement provide a duplicated entitlement does not mean the parties intended that pre‑2021 service not count as continuous service. If there is an unintended gap in the casual LSL clause in this regard, it may be that a term can be implied to give it business efficacy. Alternatively, the appropriate course might be to vary the clause under s 46(1)(b) to remedy the defect, to give effect to the parties’ intention that there be no duplicated entitlement. It does not call for a construction of ‘continuous service’ which completely denies employees the benefit of pre‑2021 service. It merely calls for clarity that once accrued leave has been taken in relation to a period of continuous service, the entitlement is exhausted and does not revive.

The retrospective effect argument

104   The HSPs rely on a hypothetical situation where a casual employee will be disadvantaged if the ordinary meaning of ‘continuous service’ is adopted.

105   Under the LSL Act, the entitlement to take long service leave is dependent on completion of a length of ‘continuous employment’: s 8(1). The LSL Act defines ‘continuous employment’: s 6. That definition includes various absences from work. Without setting out the definition in its entirety, it is easy to conclude that ‘continuous employment’ potentially has a broader meaning than the ordinary meaning of ‘continuous service’.

106   Accordingly, a casual employee may, as at 27 May 2021, have the requisite continuous employment under the LSL Act to be entitled to take long service leave, but not have sufficient ‘continuous service’ to qualify under the 2020 Enrolled Nurses Agreement.

107   Such an employee will have an accrued entitlement to take long service leave one day, and no entitlement the next.

108   The HSPs say this alteration of an accrued right amounts to retrospective operation. They say that construction principles require that this effect be avoided.

109   There is no presumption that an industrial agreement does not have some retroactivity. Parties are able to agree that conditions are to begin from an earlier date: Director General of the Ministry for Culture and Arts per Anderson J at [38].

110   In any event, the effect the HSPs describe is not retrospectivity. A clause does not have retrospective effect simply because it effects existing rights and obligations. It will only have a retrospective effect if the changed position is to take effect before the agreement is registered.

111   Critically, the HSPs do not identify why this consequence is inconsistent with the parties’ objective intentions when the casual LSL clause was introduced, in the known context of the LSL Act provisions. An industrial agreement can be made containing terms which may disadvantage some employees, or some employees in some circumstances, compared with their earlier terms and conditions. In this case, casual employees may lose something in the difference between ‘continuous employment’ and ‘continuous service’, but they gain a more generous period of long service leave once they qualify. That is not an industrially unsensible or unfair outcome.

112   On the flip‑side of this argument, the HSPs point out that an undesired or unintended practical effect of giving ‘continuous service’ its ordinary meaning is that it is possible that a hypothetical employee could be overpaid. How? By taking paid long service leave on the basis of having qualified continuous employment pre‑2021 when they do not have qualifying ‘continuous service’.

113   To conclude that this hypothetical employee has been overpaid, would be to give the agreement retrospective effect. Because it does not have retrospective effect, this scenario involves no overpayment.

Referenced industrial instruments

114   The HSPs point out that the 2018 Enrolled Nurses Agreement expressly excluded any period that a person was paid as a casual from qualifying service for the purposes of long service leave: cl 43.4(b)(iii). They say that to give the term ‘continuous service’ its ordinary meaning, that is, to include pre‑2021 service, has the effect of retrospectively altering the common objective intention of the parties that, at the time of the operation of the 2018 Enrolled Nurses Agreement (and prior agreements), service when paid as a casual was not good service for the purposes of long service leave under the industrial instrument.

115   The relevant question is what the intention of the parties was at the time the Enrolled Nurses Agreement was entered into, in 2022. The removal of cl 43.4(b)(iii) and the unqualified use of the term ‘continuous service’ in cl 44.1 objectively indicates the parties’ intention in 2022 was different to their intention when the 2018 Enrolled Nurses Agreement was made.

116   As I understand it, the HSPs say the only objective intention that should be gleaned from the removal of cl 43.4(b)(iii) and the addition of cl 44.1 in the 2020 Enrolled Nurses Agreement is that the parties intended to confer an entitlement to long service leave under an industrial agreement for the first time. But of course, that is not all. The parties also intended the entitlement to be that set out in the agreement by the words used.

117   The 2018 Enrolled Nurses Agreement does not advance the HSPs contended for construction.

The Hospital Support Workers Agreement

118   There is nothing which relevantly distinguishes the Hospital Support Workers Agreement from the Enrolled Nurses Agreement which would lead me to a different conclusion as to the correct construction of its casual LSL clause.

119   It is uncontroversial that, historically, casual employees engaged under the industrial agreements, prior to the 2020 Hospital Support Workers Agreement’s registration on 17 January 2021, were not eligible for long service leave under any industrial agreement or award, but were eligible to long service leave under the LSL Act.

120   The Hospital Support Workers Agreement was registered under s 41 of the IR Act.

121   At the time of registration it was estimated the agreement covered 6,307 employees: cl 5.4.

122   The registration of the Hospital Support Workers Agreement had the effect of cancelling and replacing the 2020 Hospital Support Workers Agreement: cl 5.5, IR Act s 41(8).

123   The 2020 Hospital Support Workers Agreement was registered on 17 January 2021. It contained the same clause as the Hospital Support Workers Agreement, clauses 39A.1‑39A.2, conferring an entitlement for long service leave for casuals, but the Hospital Support Workers Agreement has the additional clauses 39A.3‑39A.5.

124   The 2020 Hospital Support Workers Agreement replaced the 2017 Hospital Support Workers Agreement. The 2017 Hospital Support Workers Agreement provided for long service leave at cl 39, but that clause did not apply to casual employees.

125   The Hospital Support Workers Agreement is expressed to apply to the exclusion of the Quadriplegic Centre Award, the Hospital Workers (Government) Award No. 21 of 1966, the Miscellaneous Government Conditions and Allowances Award No A 4 of 1992 and the Government Services (Miscellaneous) General Agreement 2021 or its successor: cl 10.2.

126   ‘Casual Employee’ is defined in the Hospital Support Workers Agreement to mean an Employee engaged for a period of less than 1 week: cl 3.

127   Under cl 11.5:

(a) casuals employees are paid a 25% casual loading on the ordinary rate of pay;

(b) casual contracts of employment are terminable on 1 hours’ notice; and

(c) each period of casual employment stands alone and does not accrue towards entitlements under the agreement, except for long service leave under cl 39A.

128   Clause 39 deals with long service leave for employees other than casual employees. Clause 39.1 expressly excludes casual employees from the entitlement under cl 39.

129   Clause 39.3 details what service is counted as ‘service’ for the purpose of long service leave under that clause:

(a) For the purpose of these conditions “service” means service as an employee of a Western Australian Public Sector employer and will be deemed to include:

(i) absence of the employee on an Annual Leave or Public Holidays;

(ii) absence of the employee on paid Personal Leave or on an approved rostered day off;

(iii) absence of the employee on approved Personal Leave Without Pay except that portion of a continuous absence which exceeds 3 months;

(iv) absence of the employee on approved Leave Without Pay, other than Personal Leave but not exceeding 2 weeks in any qualifying period;

(v) absence of the employee on National Service or other military training, but only if the difference between the employee’s military pay and their civilian pay is made up or would, but for the fact that their military pay exceeds their civilian pay, be made up by their employer;

(vi) absence of the employee on workers’ compensation for any period not exceeding 6 months;

(vii) absence of the employee on Long Service Leave;

(viii) absence of an employee on approved leave to attend Trade Union training courses or on approved leave to attend Trade Union business; and

(ix) employment in the service of the Commonwealth or another State of Australia as provided in subclause 39.13.

(b) The service of an employee will be deemed not to include:

(i) service of an employee after the day on which they have become entitled to 26 weeks’ Long Service Leave until the day on which they commence the taking of 12 weeks of that leave;

(ii) any period of service with an Employer of less than 12 months. Provided that where an employee has service of a month or more but less than 12 months immediately prior to being transferred by one State Government employer to another; becoming redundant or qualifying for pro rata payments in lieu of leave pursuant to subclause 39.9, such period of service will count; or

(iii) any other absence of the employee except such absences as are included in service by virtue of subclause 39.3(a).

(c) Subject to the provisions of clause 39.3(a) and 39.3(b), the service of an employee will not be deemed to have been broken;

(i) by resignation, if they resign from one public authority in this State within 1 working week of the expiration of any period for which payment in lieu of Annual Leave and/or Public Holidays has been made by the employer from which the employee resigned, or, if no such payment has been made, within 1 working week of the day on which their resignation becomes effective;

(ii) if their employment is ended by their Employer for any reason other than serious misconduct, but only if:

(A) the employee resumes employment with the Government not later than 6 months from the day on which their employment ended; and

(B) payment pursuant to subclause 39.9, has not been made; or

(iii) by any absence approved by the Employer as leave whether with or without pay.

130   The term ‘continuous service’ is not otherwise defined in the Hospital Support Workers Agreement.

131   The casual LSL clause of the Hospital Support Workers Agreement, cl 44, is in relevantly the same terms as cl 44 of Enrolled Nurses Agreement set out at [32] above. Its evolution is also the same. The parties therefore rely on their submissions in relation to the Enrolled Nurses Agreement for their construction of cl 39A.

132   For the same reasons I have set out concerning the casual LSL clause of the Enrolled Nurses Agreement, cl 39A is unambiguous. Its reference to ‘continuous service’ is reference to the ordinary meaning without qualification.

Conclusion: What is the true interpretation of the casual LSL clauses?

133   A reasonable person reading the casual LSL clauses would understand them to mean that unbroken service to an employer by an employee is counted for the purpose of calculating an entitlement to take long service leave. That is the ordinary, common sense meaning of continuous service, which the words bear on their face.

134   The HSPs seek for the Commission to give the words ‘continuous service’ the meaning ‘…service provided on and from the date the entitlement first appeared in an industrial instrument which applied to the casual…’. Their underlying rationale is that this meaning is fair or reasonable in light of the historical position. But that is no basis to conclude the contended for construction is the correct construction.

135   The HSPs contended for meaning is an unnatural one which the words cannot properly bear. It is a meaning that finds no textual foothold. It is not a meaning that any reasonable person reading the agreements could conjure.

136   Employees and employers reading the agreements should be able to work out what long service leave entitlement there is at a point in time, without having to go behind the agreements to the history of casual long service leave.

137   To give the words the meaning the HSPs contend for would mislead and confuse people who have to work under and apply the agreements.

138   There will be declarations:

(a) That where clause 44.1 of the WA Health System ‑ United Workers Union (WA) ‑ Enrolled Nurses, Assistants in Nursing, Aboriginal Health Workers, Ethnic Health Workers and Aboriginal Health Practitioners Industrial Agreement 2022 refers to ‘continuous service’ it means a period of unbroken service to an employer by an employee.

(b) That where clause 39A.1 of the WA Health System ‑ United Workers Union (WA) ‑ Hospital Support Workers Industrial Agreement 2022 refers to ‘continuous service’ it means a period of unbroken service to an employer by an employee.

List of Abbreviations